149 So. 492 | La. | 1933
In December, 1925, and afterwards, defendant sold to plaintiff certain Australian wool pouches for the agreed price of $31,670.26, on which plaintiff paid $29,603.73, leaving a balance due on said purchase of $2,066.53, which balance has never been paid, but is not disputed. It does not appear why *831 said balance was not paid, but presumably it was because of the differences which arose between the parties over their next transactions, which is as follows:
In May, 1916, and afterwards, defendant sold to plaintiff 245 long tons of old sound bagging for the agreed price of $10,826.84, on account of which plaintiff paid defendant $9,744.17, leaving a balance unpaid of $1,082.67.
When the bagging reached destination, plaintiff rejected it as not coming up to specifications and the representations made by defendant, and thereupon refused to pay the balance of the purchase price ($1,082.67) and sued to recover that which had been paid on account of said purchase price ($9,744.17).
The defendant being a nonresident and having no representative within the jurisdiction of the court, the suit proceeded by attachment and plaintiff attached, as the property of defendant, the 247 tons of old sound bagging and the balance of $2,066.53 due by it to defendant on the Australian wool pouches, which was undisputed.
The suit was filed October 7, 1926; the attachment issued and a curator ad hoc was appointed in December, 1926. The curator filed his answer and other pleadings, and the case was tried during the interval between that time and the following December. It was submitted in December, 1927, and on January 9, 1928, the trial judge gave judgment in favor of plaintiff as prayed for; from which judgment the curator ad hoc took a devolutive appeal, and the transcript was lodged in this court on May 9, 1928. *832
To this suit this plaintiff put in an appearance through its attorneys. It pleaded this suit, as lis pendens and res judicata, and set up in the alternative ("second defense") that the 247 tons of old sound bagging tendered it by this defendant had been rejected as not up to specifications and to the representations made by this defendant. Wherefore this plaintiff denied that it owed this defendant anything; and, as a counterclaim (reconventional demand), asked for judgment against this defendant for the sum of $9,744.17 paid on account of the rejected bagging subject to a credit of $2,066.53, the balance admittedly due on the Australian wool pouches; that is to say, this plaintiff there asked for judgment against this defendant for the net sum of $7,677.64.
The New York court either overruled or passed over the pleas of lis pendens and res judicata (this matter is not made clear, nor is it material), for the case proceeded on the merits and there was judgment for this plaintiff against this defendant for the sum of $4,396.10; which judgment is now final.
For, when two suits involving the same issues between the same parties are brought before two separate courts each clothed with jurisdiction thereof, and both suits are allowed to proceed pari passu, the first judgment *834 rendered in either of said courts is the judgment between the parties, and the suit in the other court immediately abates and must be dismissed. Code Prac. art. 94, as amended by Act No. 62 of 1918.